KERALA STATE CONSUMER DISPUTES            

 REDRESSALCOMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL No. 1084/2001

JUDGMENT DATED: 9.11.2010

PRESENT:-

       JUSTICE SHRI.K.R.UDAYABHANU             :    PRESIDENT

       SHRI. M.K. ABDULLA SONA                      :     MEMBER

APPELLANTS

            A.M.P. Aboobakar,

            Managing Partner,

            Diamond Apartments,

            Red Cross Road,

            Calicut.

                 (Rep. by Adv.  Sri. Syam Padman)

                                                Vs

RESPONDENT

P.M. Joseph,

S/o P.J. Mani,

Pandampadathil,

Catholic Syrian Bank,

M.O. Road, Thrissur -

                         (Rep. by Adv. Sri. Cyprian Antony)

JUDGMENT

JUSTICE SHRI.K.R.UDAYABHANU          :  PRESIDENT

The appellant is the opposite party in O.P. 174/00 in the file of CDRF, Kozhikode.   The appellant is under orders to pay a sum of Rs. 22,144/- to the complainant with interest at 12% from 1.4.2000, the date of the complaint and also to pay a sum of Rs. 2,000/- towards costs. 

          It is a case of the complainant that he purchased a flat from the opposite party while under construction for Rs.7,00,000/-  as per agreement dated 22.7.1997.  The last installment of Rs.5,00,000/- was paid on 20.1.1999 on assignment of the property.  As per the agreement, the construction should be completed  within one year from the date of the agreement ie. 22.07.1997. It is alleged that on account of the delay he has sustained a loss of Rs. 50,000/- .  It is also alleged that although it was agreed that high quality material etc. would be used, the material used are of low quality.  A sum of Rs. 50,000/- is claimed for the above deficiency.  It is alleged that complete works have not been executed.  It is also alleged that the opposite parties did not obtain the number of the building from the Municipal Corporation.  It is also alleged that the car parking facilities provided is only a temporary shed worth less than Rs. 5,000/- although the complainant had paid Rs. 45,000/-  It is also alleged that although Rs. 50,000/- was paid for the extra works to be done  only works worth Rs. 5,806/- has been done.  He has altogether claimed a sum of Rs. 1,84,000/- as compensation. 

          The opposite parties have  filed version denying the allegations altogether.    It is pointed out that the complainant has failed to make payments in time.  A sum of Rs. 1,15,000/- was paid on 29.11.1997; Rs. 85,000/- on 9.2.1998 , Rs. 50,000 on 10.2.1998   and the balance amount was paid on 22.01.1999.  It is also stated that the complainant had inspected the flat after getting satisfied of the construction.  He got the flat registered in his name.  It is also pointed out that none of the other flat owners have raised any objection or filed any complaint.  The complainant was bound to make payments at different stages of construction but  he has failed to do so. 

          The evidence adduced consisted of the testimony of Pw1 to 3, Rw1, Exts. P1 to P9,and C1. 

The Forum has found that there is a delay of 6 months in completing construction and handing over the flat.  It was also found that the opposite party has no case that the complainant did not pay the amounts in time, despite the demand made and that there is no evidence that he demanded payment.  It was found that the complainant had paid 2.5 lakhs by March 1998.  Hence interest at 12% on the above amount was ordered to be paid as compensation amounting to Rs. 15,000/- The contention that  quality material was not used was rejected as the agreement did not  contain any specifications in this regard.  The case for compensation for additional works was also rejected as there was no specifications in the  agreement in this regard.  For the delay in getting the Municipal number etc.   the Forum has ordered the opposite party to pay a sum of Rs. 2,144/- as he  had to pay the building tax right from 1997 onwards.  The case in respect to the car parking was also rejected as the nature of the car parking is not specified in the agreement. It was found relying on Exts. C1 Report of  the commissioner that there are works to be completed.  Hence  a sum of Rs. 5,000/- was awarded for finishing the works by the complainant.  Hence altogether a sum of Rs. 22,144/- was ordered to be paid for interest at 12% per annum from the date of complainant and Rs. 2,000/- towards cost. 

          Pw1 is the complainant himself.  Pw2 is a retired Superintending Engineer of Public Work Department.  He is an approved  valuer.  He has prepared Exts. P6 Report at the instance of the complainant.  Pw3 is a Professor of Civil Engineering at Regional Engineering College, Calicut, who has inspected the building and filed Exts. C1 Report.  Rw1 is the opposite party, Managing Partner of the Firm that constructed the flat complex.  We find that as per Ext. P2,  which is the annexure of the Ext. P1 agreement, initially a sum of Rs. 5,000/- is to be paid; and on structural completion Rs. 1,95,000/- and on final completion/registration  Rs. 5,00,000/-  Hence we find there is no substance in the contention of the opposite party  that the amounts were not paid in time.  Hence we find that no interfere in the finding of the Forum that the complainant is entitled for interest for the delayed completion of construction @ 12% on the amount of Rs. 2,50,000/- is called for.  The amount of Rs. 5,000/- was ordered to be paid on the basis of the finding in Exts. C1.  It was pointed out by the  Counsel for the appellant that in Ext. C1, the Commissioner has noted that as the bathroom which was already constructed had to be demolished  and the existing bathroom has been constructed at the request of the complainant, a sum of Rs. 5,000/- is estimated as loss to the opposite party in this regard.  Hence, the counsel has sought for adjusting  the above amount in the amount ordered to be paid to the complainant for the deficiency in the construction.  We find that the above contention of the Counsel for the appellants is genuine. Hence  the   direction to pay a sum of Rs. 5,000/- in this regard is set aside.  As to direction to pay Rs. 2,144/-  towards  building tax for the period prior to the registration of the flat in the name of the complainant  we find that no interfere in the order of the Forum in this regard is called for.  Hence we find that the complainant would be entitled for the amount of Rs. 15,000/- +  Rs. 2,144/- ie. altogether, Rs. 17,144/-  It would be reasonable to award interest @ 9% per annum only.  Hence it is ordered that the complainant will be entitled for a sum of Rs. 17,144/- with interest at 9% per annum from 1.04.2000.  The order with respect to payment of costs is sustained.  The appellants/opposite party would make the payments within 3 months from the date of receipt of this order failing which the complainant would be entitled for the interest at 12% per annum for the amounts due from 9.11.2010, the date of this order.

          In the result, the appeal is allowed in part as above. 

          The office will forward the LCR along with the copy of this order to the Forum.    

      JUSTICE .K.R.UDAYABHANU          :  PRESIDENT

                   M.K. ABDULLA SONA                    :     MEMBER

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